Brown v. Larry

• Decision Date: 14 November 1907
• Citation: 44 So. 841,153 Ala. 452
• Parties: BROWN v. LARRY. [*]
• Court: Alabama Supreme Court

44 So. 841

153 Ala. 452

BROWN v. LARRY. ^[*]

Supreme Court of Alabama

November 14, 1907

Appeal from Tuscaloosa County Court; H. B. Foster, Judge.

Bill by James Larry against S. H. Brown for specific performance of a contract. From a judgment for complainant, respondent appeals. Reversed and remanded.

The contract sought to be enforced was as follows: "S. H Brown hereby rents to James Larry (and also agrees on certain conditions stated to sell to him) for a period of five years beginning on January 1, 1902, the N.E. 1/4 of N.W. 1/4 section 29, township 21, range 9 W., in Tuscaloosa county Ala., on the following conditions: (1) Larry agrees to pay to Brown on the 1st day of each November of each year during the continuance of this contract (beginning November 1, 1902) an annual rental for said land the sum of $40, and as to the payment of said sum of $40 for each of said years Larry expressly waives the benefit of all exemption laws and agrees to pay all costs of collection, including a reasonable attorney's fee. (2) In the event of a failure on the part of Larry to have said rent paid in full promptly at its maturity in any year, said Larry forfeits any other rights that he may have under this contract, and upon such failure he thereupon agrees to surrender possession of said real estate on or before the 1st day of December of such year. (3) So long as Larry promptly complies with his foregoing undertaking to pay the annual rental of said land, then Brown agrees to give to Larry the right or option to buy said real estate at any time during the continuance of this contract at the price of $400 cash, and upon the payment of said sum cash said Brown will thereupon execute and deliver to said Larry a deed conveying to him all of the right, title, claim, and interest of said Brown to said land above described; but it is expressly understood that said Larry will lose his right to purchase said land, should he at any time make default as to his payment of rent as hereinbefore provided." This was signed by both parties to the contract.

Robison Brown, for appellant.

Foster & Oliver, for appellee.

SIMPSON J.

This was a bill filed by the appellee against the appellant praying specific performance of an agreement to sell the lands therein described to complainant. The contract on which the equity of the bill rests is set out as an exhibit to the bill and will be set out in substance in the statement by the reporter. The original agreement of renting, in which was included an option to purchase, was dated October 26, 1901 and the agreed statement of facts shows that advancements were received by complainant during the years 1902, 1903, 1904, and 1905; that on January 6, 1902, complainant executed to respondent a note and mortgage on his crops to be grown on said lands during that year, and on certain other personal property, for $200, due October 15, 1902, which included the $40 rent, and also amounts due for previous advancements, some of which had been made before the execution of the original agreement. Certain other advancements were made during that year, and in the fall and winter payments were made, reducing the entire amount due, and on March 30, 1903, complainant executed another mortgage and note, covering the same property and the crops of that year, for $133, due November 1, 1903, which included the balance due and advances up to date. During the fall of that year the complainant paid respondent a sufficient amount of money to pay off entirely said mortgage, but said nothing as to which debt it was to be applied to. Respondent applied the money to the payment of said mortgage, and when, on November 7, 1903, complainant paid him $30, respondent gave him a receipt for the same "on rent note." On March 2, 1904, complainant executed another mortgage and note for $143, due October 15, 1904, which included the balance of $10 due from the previous year and advances received up to date. Other advances were received during that year, and by sundry payments during the fall and winter of that year, the last payment being early in December, he paid the entire amount of advances and rent. No mortgage was made in 1905, but certain advancements were made, and on October 7th of that year complainant paid $50, without any particular instructions as to its application, and respondent gave two receipts, one for $37 "on ac't" and the other for $13 "on rent," and on November 15th, the remainder being paid, he executed a receipt therefor. All of the payments were made from proceeds of crops raised on said lands. The only thing said between the parties about the option, subsequent to the execution of the original instrument, was that complainant asked respondent in 1902, whether,...